In Romero v. County of Kern, published December 15, 2025, the Fifth District Court of Appeal reversed judgment on the pleadings granted to the defendant county. The plaintiff, a captain in the county fire department complained to the battalion chief and the deputy chief that the fire extinguishers on the county’s fire engines were being improperly serviced. The deputy chief communicated the complaints to the fire marshal. The plaintiff received a text from the assistant fire marshal stating the plaintiff was no longer allowed to work in the assistant fire marshal’s office. The plaintiff was banned from working in fire prevention. He complained that he was being banned in retaliation for his complaints. He was told he was banned for unauthorized overtime. The plaintiff pursued internal administrative remedies, but withdrew his complaint when the fire chief told him the retaliation issues would be addressed internally. He was eventually placed on administrative leave and then terminated for violations of county civil service commission and fire department rules and regulations. After presenting a claim for damages, the plaintiff sued the county, alleging that he was wrongfully terminated in retaliation for whistleblower activities in violation of Labor Code sections 1102.5, 6310, and 98.6. The trial court granted the county’s motion for judgment on the pleadings on the ground that the plaintiff had failed to exhaust his administrative remedies, and that his concession that he did not exhaust them showed he could not amend his complaint to show exhaustion.
The appellate court disagreed. The county contended that its administrative remedy rules governed the plaintiff’s claims because they provide procedures for a county employee to challenge his or her dismissal from county employment. But the rules at issue do not incorporate clearly defined procedures for submitting, evaluating, and resolving the plaintiff’s whistleblower retaliation complaints. The rules focus on challenging notices of proposed disciplinary action by adjudicating whether the rules the employee was accused of violating were violated. Nothing requires the commission hearing the administrative appeal to evaluate and resolve a whistleblower retaliation claim. Thus, one purpose of the administrative exhaustion doctrine–aiding judicial review by allwoing the agency to draw upon its expertise and develop a factual record for the court’s consideration–is not satisfied if the employee attempts to present a whistleblower claim to the commission. Because the county does not provide a clearly defined policy or procedure for the submission, evaluation, and resolution of whistleblower retaliation claims, the plaintiff was not required to exhaust his administrative remedies.
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